TMI Blog2018 (8) TMI 1382X X X X Extracts X X X X X X X X Extracts X X X X ..... No. E/86209/18 - A/87037/2018 - Dated:- 5-7-2018 - DR. D.M. MISRA, MEMBER (JUDICIAL) Shri Jayesh P Doshi, C.A. for Appellant Shri Sanjay Hasija, Supdt. (AR) for Respondent ORDER Per: Dr. D.M. Misra Heard both sides. 2. This is an appeal filed against Order-in-Original No. NSK/CGST-CS/002/CPM/13/2017-18 dated 29.12.2017 passed by the Commissioner of CGST Central Excise, Nasik. 3. Briefly stated facts of the case are that the appellant during the relevant period i.e. May, 1998 to March, 2001 were engaged in the manufacture of re-rolling products and discharged duty under Section 3A of Central Excise Act, 1944 read with Rule 96ZP(3) of erstwhile Central Excise Rules, 1944, on the basis of the Annual Productio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 96ZP(2) of the Central Excise Rules, 1944. Further, he submits that in absence of stay from the Supreme Court, the precedent on the issue ought to be followed. In support he referred to the judgment of Hon'ble Delhi High Court in the case of Principal Commissioner of Central Excise, Delhi I Vs. Space Telelink Ltd. 2017 (358) ELT 189 (Del). 6. I have carefully considered the submissions advanced by both sides. I find that learned C.A. for the appellant could not produce any order whereby, the operation of the judgment of 3 members Bench in the case of Supreme Steels and General Mills - 2001 (133) ELT 513 (SC) has been stayed. In absence of any stay, the ratio laid down thereunder be considered as binding precedent interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of annual production capacity whereas subsection (3) is regarding rate and manner of recovery, wherein proviso enables some relaxation. Proviso relied upon by Advocate Shri Chillarge is for the purpose of determination of annual production capacity. If the authorities, after declaring particular product as notified goods , proceeds to fix the annual production capacity of the factory, it has to do so by giving proportionate increase, if during the year under consideration for the purpose of fixation of annual production capacity, the factory was closed for certain period, manufacturer will be able to evade the duty, by taking the production of six months to be the annual production capacity, because factory was closed for six months duri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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